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He had previously pleaded guilty in criminal court to simple assault on two of the patients and received a conditional discharge and probation.

The discipline committee, independent of the college and made up of doctors and members of the public, issued its decision in the Peirovy case despite the urging at the time of the college’s lawyer to revoke his licence.

On Tuesday, the college asked a panel of three divisional court judges to order a new penalty hearing so that it could once again argue that Peirovy’s licence be yanked.

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“The committee failed to recognize that changing social values around sexual abuse by physicians” require stricter penalties, CPSO lawyer Elisabeth Widner told the judges. “The point is that the discipline committee is not responding to changing social values.”

The appeal highlighted the fact that under current Ontario law, only certain forms of sexual abuse by physicians, including penetration, oral sex and masturbation, lead to the mandatory revocation of a physician’s licence.

An appeal by the CPSO of a decision by its own discipline committee is rare, and Tuesday’s hearing underscored how the Peirovy case has become an example of the problems that continue to exist in the system designed to protect Ontario patients.

“My concern about what you’re asking us to do is tell the committee they have to get tougher on this because times have changed,” said one of the judges, Anne Molloy, to Widner. “It seems to me that that’s the college’s job . . . They are the ones who have to be mindful of protecting the public and governing their members.”

Dr. Javad Peirovy was found guilty last year by a panel of the discipline committee of the College of Physicians and Surgeons of Ontario of sexually abusing four female patients by groping their breasts. (Toronto Police Service)

A task force set up by Health Minister Eric Hoskins following a 2014 Star investigation into doctors still practicing despite sexual abuse findings recommended that legislation be amended so that all forms of sexual abuse lead to revocation of the licence. Hoskins said the government intended to propose legislative amendments this fall, but that has yet to happen.

Aside from arguing that “changing social values” require a heavier punishment for Peirovy, Widner said that the committee’s decision on a penalty differed significantly from its decision on guilt.

But the penalty decision relied heavily on defence expert evidence, namely that Peirovy “had very serious deficits in his communication skills” and that he was embarrassed by his actions and at a low risk to reoffend.

Peirovy, who served his six-month suspension and now works at Ultimate Diagnostics in North York, was not in court for the appeal. He can only practice on female patients in the presence of a female chaperone.

Some of the arguments Tuesday were met with apparent incredulity by the judges, with Justice Michael Dambrot wondering if the case had descended into an “Alice in Wonderland” alternate universe where this form of touching would not be considered sexual in nature.

Porter guided the judges through past discipline committee cases dealing with sexual abuse — many of which were considered more egregious than Peirovy — where the doctors received suspensions of between six and nine months. This was done to show that the committee was well within the typical range when it punished Peirovy.

But Dambrot called it a “rather depressing catalogue of cases” and wondered if the discipline committee knew what it was doing. “It might suggest that the penalties are too low,” he said.

“Indeed,” Molloy added, “this type of conduct wouldn’t just get you a six-month suspension, but could also get you six months in jail.”

The judges will issue their ruling at a later date.

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